One of South Africa’s top courts throw FlySafair a lifeline

The ruling gives South Africa’s largest domestic airline more time to argue its case in court before facing any penalties.

The issue began when the Air Services Licensing Council (ASLC) ruled that FlySafair’s ownership structure did not comply with South African law. 

The Air Services Licensing Act requires that South African residents must own at least 75% of a domestic airline’s voting rights. 

However, FlySafair’s main shareholder, Ireland-based ASL Aviation Holdings, reportedly owns about 74.86% of the airline, which is almost three times the legal foreign ownership limit.

FlySafair came under scrutiny in 2022 after Airlink and Global Aviation (which operates LIFT) complained to regulators. 

They argued that FlySafair’s foreign ownership gave it an unfair advantage and questioned whether the airline’s structure met South Africa’s ownership requirements.

The investigation that followed found that FlySafair had not amended its air service licence after a 2019 restructuring that left most of its shares in foreign hands.

This raised concerns that the airline was effectively controlled from abroad, something local regulations are designed to prevent.

The ASLC then ordered FlySafair to correct its shareholding within a year or risk losing its domestic licence. The deadline was set for 23 January 2026. 

However, the airline stated that it struggled to obtain clarity from the council regarding what changes would comply with the law. According to FlySafair chief marketing officer Kirby Gordon, repeated requests for meetings and guidance went unanswered.

In response, FlySafair launched a legal challenge to the ASLC’s decision, arguing that the council’s interpretation of the rules was unrealistic. 

The airline said the council’s view—that ownership must be held by individual South African citizens rather than companies or trusts—was impractical, as very few individuals could afford to own an airline outright. 

Unprecedented case

FlySafair also warned that this strict reading could put other South African carriers at risk of non-compliance.

Because the court hearing to review the ASLC’s decision has been delayed, FlySafair applied for an urgent interdict to remove the January 2026 deadline. 

The High Court granted that request this week, effectively pausing any enforcement until the case is properly heard.

Aviation analyst Guy Leitch said the court’s ruling shows it recognises that the case is complex and that FlySafair is engaging with the process in good faith.

“It’s clear they weren’t going to get a decision by the original deadline, so the court has effectively granted more time to resolve the issue. It shows the court understands that FlySafair is using the proper legal channels,” he said. 

Leitch described the case as unprecedented. “This is the first time an airline’s foreign shareholding has been challenged like this in South Africa,” he said. 

“It’s testing the boundaries of the law and will likely bring much-needed clarity on what the ownership rules actually mean in practice.”

However, competitors maintain that FlySafair’s foreign shareholders give it an unfair edge. “They argue that offshore ownership provides access to cheaper capital,” said Leitch. 

“Capital is crucial for airlines as it’s what allows them to buy aircraft and grow. So Airlink and others believe FlySafair’s structure gives it an advantage they don’t have.”

Leitch said FlySafair hasn’t made any changes to its shareholding yet. “Instead, the airline is asking for clear definitions of what counts as ‘South African ownership’ before making adjustments,” he explained. 

“They’ve said they’ll comply once they know exactly what’s required.”

He added that the court’s decision to pause the deadline was a logical one. “The judiciary has essentially given itself more time to deal with a complicated issue,” Leitch said. 

“It recognises that the case isn’t straightforward and that it needs to be properly resolved before any enforcement can be fair.”

According to Leitch, the outcome of this case will set an important precedent for the entire aviation industry. “It’s going to determine how foreign ownership is interpreted under South African law,” he said. 

Issued on BusinessTech by Malcolm Libera | https://businesstech.co.za/news/business/839386/one-of-south-africas-top-courts-throw-flysafair-a-lifeline/